The Copyright Office issued an interim regulation in the Federal Register Jan 25, giving a qualified exemption to mandatory copyright deposit requirement for online works published in the United States. The exemption does not apply to online works that are also published in physical form.

The regulation exempts online works, but only unless the Copyright Office issues a demand for deposit. The Copyright Office will set up categories of works subject to demand, starting with electronic serials i.e.: periodicals; newspapers; annuals; and the journals, proceedings, transactions, etc. of societies.

The regulation sets forth the process for issuing and responding to a demand for deposit, amends the definition of a “complete copy” and establishes new best edition criteria for electronic serials available only online.

It is interesting to read that the Copyright Office only got a handful of comments to its July 15 notice. It appears that commenters got a heavier weight because of this, and several comments are referred to in the Register.

He includes a chronology going back to 2004 on origins of the anti counterfeiting trade agreement. He also provides a summary of the leaked U.S. proposal from last November. See especially these provisions that tighten inducement and access (as the DMCA does).

Paragraph 2 – Third party liability.
The third party liability provisions focus on copyright, though an EU
document notes that it could (should) be extended to trademark and
perhaps other IP infringement. The goal of this section is to create
an international minimum harmonization regarding the issue of what is
called in some Member States “contributory copyright infringement”.
The U.S. proposal would include “inducement” into the standard,
something established in the U.S. Grokster case, but not found in many
other countries. This would result in a huge change in domestic law in
many countries (including Canada).

Paragraph 4 – Anti-circumvention Provisions.
ACTA would require civil and criminal penalties associated with
anti-circumvention provisions (legal protection for digital locks).
This goes beyond the requirements of the WIPO Internet treaties and
beyond current EU law which “leaves a reasonable margin of discretion
to Member States.” There is no link between the anti-circumvention
provisions and copyright exceptions. The U.S. proposal also requires
the anti-circumvention provisions to apply to TPMs that merely protect
access to a work (rather than reproduction or making available). This
would again go beyond current EU law to include protection against
circumventing technologies like region coding. From a Canadian
perspective, none of this is currently domestic law. As previously
speculated, the clear intent is to establish a Global DMCA. Paragraph 5 – Civil and Criminal Enforcement of Anti-Circumvention.
As noted above, this section requires both civil and criminal
provisions for the anti-circumvention rules, something not found in the
WIPO Internet treaties. The anti-circumvention provisions are also
designed to stop countries from establishing interoperability
requirements (ie. the ability for consumers to play purchased music on
different devices). The EU notes that this not consistent with its
law, which states “Compatibility and interoperability of the different
systems should be encouraged.” Of course, might reasonable ask why
such a provision is even in ACTA.

Take a look at the evolution of U.S. formalities, especially as represented in concise chart form on pages 12-13 in Jane Ginsberg’s “The US Experience with Copyright Formalities: A Love/Hate Relationship” Columbia Public Law Research Paper No. 10-225, posted for free at SSRN.It is especially useful in detailing deposit requirements, and the effect of recordation of transfers. Also takes a look at alternatives to registration wrt “marking off” ownership rights a la Creative Commons, noting that the DMCA prohibits the removal of such digital ownership markings. Brief look at what copyright examiners focus on, when approving copyright registrations. Overall an informative read. Recommended.

Minow: This chart was useful when it first arrived on the scene many years ago, but now it is an essential document for all libraries and others with projects that need to ascertain the copyright status of older works. In recent years, you’ve added sound recordings and architectural works. The true labor of love, is works published outside the United States. Tell us what you added this year.

Hirtle: I’ve added the list of countries that have joined Berne or WTO after 1 January 1996. I’ve also tweaked the language of the Laos exceptions, though I am still unsure about this and welcome readers’ comments. Here’s the issue: Laos joined the UCC in 1954. Works published after that date that complied with US formalities would receive protection. The new Laotian government repudiated the constitution and the previous government in 1974, but I assume that once a work got protection in the US, it continued to have that protection; it was not necessary for the treaty to remain in force. And I don’t think that the Laotian government has ever formally renounced its membership in the UCC, but has just ignored it. So I don’t know the status of Laotian works after 1974. And as far as I can tell, Laos is the only country whose only copyright regime is still the UCC.

Minow: Whew.

Hirtle: The other changes are minor. I changed the title of the US section to include registered works as well a published, but this still isn’t quite right (since a foreign work could have been registered, entered the public domain through non-renewal, and then had its copyright restored in 1996).

At the recommendation of a user, I added a reference to US government works at the end of that section. (It had been in a footnote.) In footnote 1, we added a link to Copyright and Cultural Institutions, which provides more background on the categories in the chart. Finally, we have changed the Creative Commons license on the chart from BY-NC to simply BY. I hope that this makes it more useful.

Minow: Do you ever regret getting started on this?

Hirtle: Not really. My one worry is that the chart may contribute to an illusion of certainty when ambiguity is the reality. An archives, for example, might assume that a manuscript letter in its holdings is an unpublished work, when in reality it had been published with the authority of the copyright owner years before and must be treated as a publication. A museum might blithely assume that works created before 1923 are in the public domain, whereas either the works were unpublished (and hence the 1923 date does not apply), or were published (and therefore needed to follow the rules on notice, renewal, etc.). The complexities in the chart are symptomatic of a failed copyright system, but I hold out little hope that it will change.

*Peter B. Hirtle is a Senior Policy Advisor in the Cornell University Library and member of the Stanford Copyright & Fair Use Advisory Board.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

Here’s a great opportunity to talk with Stanford Law Library folks who are co-hosting the free workshop with Carl Malamud (Public.resource.org) on making primary legal materials more accessible. Joining the discussion will be Anurag Acharya (Google) and Jonathan Zittrain (Harvard).

10:30AM – The National Inventory of Primary Legal Materials Discussion of how to define primary legal materials.Discussion of how to structure the national survey, including what information to collect.

11:15AM – General Discussion of Legal IssuesDiscussion of issues such as copyright over primary legal materials, enabling legislation, and other issues of the law.

2:15-3:30 – Technical DiscussionDiscussion of technical challenges, including specification of a core open source system, issues of markup and citation, issues of privacy, issues of ingestion, issues of authentication.———————————-Pay parking available at Parking Structure 6 (PS6) at Campus Drive East and Arguello Mall and the Tresidder Lot near Tresidder Union and the Faculty Club, off Mayfield Ave.

Secondary Content

On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.